CEQA Terminator

Two weeks ago, legislature Democrats approved a plan to address California’s budget woes through June 2010, accounting for $18 billion of the anticipated $41.6 billion shortfall. The plan included $7.3 billion of cuts and and $9.3 billion of general fund revenue — but $5.7 billion of that would be sourced from tax increases, so naturally, Governor Schwarzenegger announced his intention to block it, asserting that it would “punish” Californians. This came on the heels of another announcement from the Pooled Money Investment Board, stating that the state’s budget crisis required halting any lending to some 2,000 infrastructure projects statewide totalling to $16.2 billion. The budget legislation passed by Democrats included an exemption for eight specific transportation projects from the full demands of the California Environmental Quality Act (CEQA), but it still required that Caltrans complete some environmental analysis. The Governor, however, refused to approve the legislation unless it was amended to include a significant relaxation of CEQA. CEQA requires state and local agencies in California to undergo thorough review of the environmental impacts their projects will cause, and to analyze alternatives to those projects. Arnold calls for some transportation projects, including freeway widening, to be exempt from these requirements. One particular point of contention is the widening of Highway 50 in Sacramento with carpool lanes between Watt Ave. and Sunrise Blvd., which did not appear on the legislature’s list of eight exempt projects. The Governor wants to bypass further review of this project; but this would fly in the face of a court ruling from this past summer, in which Judge Timothy Frawley found Caltrans’ environmental review of the widening to be inadequate and required Caltrans to carry out additional analysis. The underlying goal of the Governor’s demands is economic stimulus: if projects can skip through environmental review, they could be declared “shovel-ready” immediately, and thus would be eligible for federal stimulus money.

The CEQA exemptions demanded by the Governor represent a significant concession to business interests, in order to compensate for tax increases included in the $18 billion plan proposed by legislature Democrats — but they also negate the underlying purpose of CEQA. Both CEQA and the National Environmental Policy Act (NEPA) — the federal environmental legislation on which CEQA is modeled — require agencies to consider a reasonable range of alternatives to a proposed project and the impacts associated with each alternative, including a “No Build” alternative that analyzes the no-project status quo. But CEQA, unlike NEPA, contains a “substantive mandate,” which basically means that state and local agencies in California are held to a higher standard than federal agencies. Once a federal agency has considered the environmental impacts of a proposed project and some identified alternatives to that project, under NEPA, that agency is free to select a project that is harmful to the environment, so long as the agency has complied with procedural requirements. By contrast, CEQA obligates agencies in California not only to study reasonable alternatives, but also to choose feasible project alternatives that are environmentally superior to the proposed project:

The Legislature finds and declares that it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects […]. Cal. Pub. Res. Code § 21002.

But this is not the end of the story; exceptions have been carved out of this general principle, including this broad exception: an agency may still pursue an environmentally inferior project if it finds that the adverse environmental impacts are outweighed by other benefits that could be economic, legal, social, or technological in nature. If the agency does pursue such a project, it must also adopt a Statement of Overriding Considerations, which explains why a project’s environmental impacts are acceptable because of the project’s compelling benefits. The point here is that CEQA requires agencies in California to go through a balancing process, in which a project’s adverse environmental effects are weighed against its potential economic and other benefits. Even if a project is ultimately approved because it is deemed that the project’s benefits outweigh the damage to the environment that would result from its implementation, it is still a good thing that we require agencies to go through this analytical step, because it promotes well-reasoned decision-making, and it provides an avenue for accountability.

The particular situation of a freeway widening presents a robust set of interests that deserve to be fairly balanced in the manner prescribed by CEQA. The Governor is playing a political game with the budget; to satisfy business interests, he emphasizes the economic and job creation benefit to California that would result from taking in federal stimulus funding and applying that money toward road projects that would be made “shovel-ready” by eliminating CEQA-mandated environmental review of those projects. The economic benefit is an element of the CEQA balancing act, and it takes on new relevance in light of the recession. But there are compelling adverse environmental effects that also deserve to be fairly considered. Induced demand is well-documented; in the long term, new freeway construction does not relieve traffic congestion. Instead, it promotes more driving that leads to worsening congestion and deteriorating air quality. Given that transportation accounts for 40% of greenhouse gas emissions statewide, the Governor’s hasty support of highway projects — particularly when combined with his continued disdain of transit — undermines AB 32’s emissions reduction mandates, which Arnold himself claims to support. In the past two years, Attorney General Jerry Brown has been cracking down on planning efforts across the State of California, pointing out when proposed plans and projects inadequately address emissions and climate change. In October 2008, Brown turned his attention to the Bay Area’s very own Metropolitan Transportation Commission, criticizing MTC for not subjecting long-term committed freeway projects to review — particularly in light of the fact that induced demand associated with wider freeways could negatively affect climate change and transit ridership.

Constructing new or widened roadways may carry a heavy price, in terms of affecting a city’s air quality, congestion, and overall livability, by inducing suburban sprawl instead of compact walkable development. CEQA review provides an avenue by which to study these assorted impacts and weigh them against the economic benefits; it also gives the public a meaningful opportunity to provide comment. By seeking to exempt highway projects from review, the Governor inappropriately undermines this fundamental purpose underlying California’s environmental legislation. It is counterproductive and irresponsible to overlook these impacts, and doing so sets a potentially dangerous precedent. More generally, it reveals a frustrating short-sightedness that has characterized the federal stimulus discussion, not just from the Governor, but even from inklings from President-Elect Obama himself. We will not be too quick to judge Obama, who, after all, is not even in office yet; but the Governor continues to build a record that calls into question his vocalized commitment to the environment. His demands effectively trade in long-term sustainability for short-term economic benefits. The short-sightedness lies in a desire to build something, anything, as long as it’s done swiftly, with little concern as to the eventual consequences of such hasty action — consequences that CEQA was in part crafted to reveal. The federal stimulus money is designed to create new construction jobs, but those jobs are not limited to road and bridge construction alone. A longer-term, more forward-thinking investment package would be desirable, but if we are going to exempt any projects at all from CEQA so as to make them “shovel-ready” for stimulus money, we should at least do so for projects that have a chance to take cars off of California’s traffic-choked roads; to reduce greenhouse gas emissions; to chip away at dependence on foreign oil; and to give rise to denser, more livable cities. Of course, that would be new transit infrastructure, which would embrace a greener, more sustainable future by correcting the planning mistakes of previous decades — not new roads, which would reproduce and compound them. We should not undervalue the importance of efforts to resolve the crisis at both the national and state level. But how unfortunate it is that the Governor so willingly gambles with the future of California for the sake of political shenanigans.

Anyway, our apologies for ending this year’s posts on a sour note. Here’s to a better and brighter 2009.